International Commission of Jurists in its “Enquiry into the Events in East Pakistan in 1971” studied the rampant commission of international crimes and their culpability in Bangladesh and recommended the formation of an international tribunal by the Bangladesh government to prosecute these crimes and punish their perpetrators (The Events in East Pakistan, 1971: A Legal Study, No. 8, June 1972, pp. 26-41). Bangladesh enacted International Crimes (Tribunal) Act 1973 (Act) and established a special Tribunal, which formulated its Rules of Procedures (Rules, Tri:/87/Bidhi/10) in 2010. The 1973 Act and Rules have been criticised by some for its alleged inadequacies, falling short of international standards. In a previous piece (Star, 19 February 2011, p. 22), I have shown that there is no common, but minimum, international standards, which vary appreciable from trial to trial. In successive pieces, I would compare the 1973 Act and Rules with the mandates and rules of procedure of major ongoing war crimes trials to challenge these criticisms, which are ill-conceived.

Special Tribunal and composition: The crimes designated in s3(2) of the 1973 Act are crimes at international law. There are qualitative differences in the legal definition and constituent elements of ordinary crimes, like murder, under national criminal law and extraordinary crimes, notably genocidal murder, in international criminal law. International crimes are organised, massive, and their trials involve a myriad of perpetrators including those behind the scenes, spreading over more than one jurisdiction, and raising complex issues of international law. Not every national criminal justice system is well equipped to handle the magnitude and dimensions of these trials. Nor is it possible to try these crimes solely under national penal law. The 1973 Act also requires expeditious trials and non-technical rules and procedure to avoid unreasonable delay and irrelevant issues (ss11:3, 13 &19). The competence and jurisdiction of national courts is often circumscribed by the technicalities of the applicable law, procedural rules, and extra-legal consideration - the usual causes of uncertainty and procrastination in many trials. The expeditious disposal of the Nationality of Golam Azam case in 1994-1995 in stark contrast with the Bangabandhu murder trial from 1996 to 2009 precisely illustrate this potential risk. Special tribunals with specific mandates are capable of rendering expeditious justice by addressing usual procedural complexities. The unavailability of typical admissible evidence, such as enough surviving witnesses and physical evidence, warrants the differential treatment of international crimes. Special tribunals also apply both national and international law in a mutually supportive way. It is these special factors that warrant the formation of special tribunals, which led to the formation of special tribunal/court in Nuremberg, Bosnia, Rwanda, Sierra Leon, East Timor, Kosovo, and Cambodia. The special Tribunal established under s6 of the 1973 Act to try the international crimes of 1971 is in order with the international practice.

Section 6 of the 1973 Act embodies rules relating to the composition of the Tribunal. It deals with the selection of a chairperson, number of members/judges and their qualifications, the seat, procedures for filling up any vacancy during trials, absence of any member from any sitting, and freedom of witness calling and evidence taking (s6:1-6). The opinion of the majority shall prevail and should be treated as the expressed decision of the Tribunal with no dissenting opinion in public (s6:7). The prosecution, the accused persons, and their counsel cannot legally challenge the constitution of the Tribunal and the appointment of its chairman and members/judges (s6:8). The 2009 amendment to the 1973 Act provides for the independence of the Tribunal in exercising its judicial functions and ensuring fair trial (s2A). These provisions are similar to the composition of the tribunal, qualifications, appointment, and status of judges under the ICTY and ICTR Statutes (Arts 1013).

Jurisdiction and power: The legal contents of the crimes to be tried are described in s3(2) of the 1973 Act. The constituent elements of crimes against humanity, crimes against peace, genocide, war crimes, and violation of humanitarian laws are consistent with the definition of these crimes at international law. The Tribunal can try any other crimes at international law; and abatement or conspiracy to commit and complicity in the commission of any such crimes. The conventional and judicial exposition of these crimes is readily available in the Charters, Statutes, and Judgments of the Nuremberg Tribunal, Nuremberg Principles of the International Law Commission (ILC) 1947, Genocide Convention 1948 (Art 2), Geneva Conventions1949, International Crimes Tribunal for Yugoslavia (ICTY, Arts 2-5), International Crimes Tribunal for Rwanda (ICTR, Arts 2-5), Special Court of Serra Leone (SCSL), Extraordinary Chamber of the Cambodian Court (ECCC), and International Criminal Court (ICC, Arts 5-8).

The 1973 Act (s11) and Rules (chapter V) confer wide-ranging powers on the Tribunal to take cognizance of an offence, investigation reports, and evidence; summon witnesses; administer their oaths; warrant their presence; production of documentary and evidentiary materials; and testimony during the trial. The Tribunal may ask any accused person any explanatory question arising from the evidence against him/her at any stage of the trial and without any prior warning. In addition to conducting speedy trials, the Tribunal can punish any person obstructing or abusing its process, disobeying its orders or direction, prejudicing to a case, or contempting the Tribunal. It has the power to direct and issue arrest warrant, custody order, and continued detention in custody of any person charged with any of the designated crimes. The Chair of the Tribunal can make any administrative arrangements necessary for the performance of the assigned functions. These powers are similar to those available in the Statutes of ICTY (Arts 8-10, 20) and ICTR (Arts 7-9, 19).

To be continued...

The writer is professor of Law, Macquarie University, Sydney, Australia.